Ted Harding SC

In June 2021, the Government granted a Patent of Precedence to Ted, entitling him to use the title Senior Counsel. He was called to the Inner Bar in October 2021. Ted specialises in: Regulatory, Commercial and Media law. His Regulatory law practice has an emphasis on financial regulation and corporate enforcement. Ted also practises in the areas of Professional Negligence litigation; Data Protection law; Judicial Review; and Bankruptcy, Insolvency and Restructuring. He is an Accredited Mediator. Ted is an author, a former Editor of The Sunday Business Post and television and radio broadcaster.

In recent years, he has acted in some of the most complex, consequential and prolonged cases ever to come before the Irish Courts. Among the cases in which he acted were four criminal prosecutions relating to Anglo Irish Bank Corporation and a major civil action by members of businessman Seán Quinn’s family against the Central Bank of Ireland and Others. The cases involved the consideration by the Courts of principles, concepts and propositions for the first time, resulting in the making of new law. Ted also advised in relation to the Joint Oireachtas Committee of Inquiry into the Banking Crisis.

The cases and the inquiry required a command of complex matters of criminal, company, banking and regulatory law, along with accountancy issues. The experience gained enables him to give up-to-date, specialist advice on regulatory, compliance, professional negligence and corporate enforcement issues.

Ted is only former Editor of a national newspaper in practice who is a member of the Inner Bar. He has an in-depth knowledge of business, corporate and financial affairs. Further, he has first-hand experience of media law is as editor / journalist / publisher and legal adviser. This is a very rare combination at the Bar, giving clients an exceptional perspective.

Ted is a graduate of Trinity College Dublin, the Honorable Society of King’s Inns and University College Dublin, from which he holds a Master of Laws degree. He also holds a professional qualification in accounting and finance from the Association of Chartered Certified Accountants (ACCA).

See also:

The Fifth Court – Ireland’s Legal Podcast.

Ted discusses Media Law, including privacy, defamation, tribunals of inquiry and his experience of acting in the high-profile criminal trials relating to the collapse of Anglo Irish Bank Corporation. The interview references: businessman Seán Quinn; the former Chairman of Anglo Irish Bank Corporation, the late Seán FitzPatrick;  former Group Chief Executive of IL&P, Denis Casey; and many other prominent figures in the law, business and the media.

Commerical Law

In 2021-2022, Ted acted with Paul Gardiner SC and Ciaran Lewis SC for the Plaintiffs in Brandon Point Holdings Ltd & Others v. Malin Corporation plc. In a case raising novel questions of law for consideration by the Irish Courts, the Plaintiffs sought to convert A Ordinary Shares they held in Malin Corporation plc into Ordinary Shares in the company.

See: https://www.irishtimes.com/business/health-pharma/kelly-martin-and-other-malin-founders-to-sue-for-18-5m-shares-1.4694772;

https://thecurrency.news/articles/65094/what-now-for-malin-share-wars-buybacks-and-dividends/; and

https://www.irishtimes.com/business/2022/10/13/malin-settles-legal-action-over-founder-share-claims/

Administrative Law / Judicial Review / Employment Law

2022 – to date: Acting for the Respondent in Guerin v. Fingal County Council. The judicial review raises novel issues concerning publication (or republication) of statements made by the Applicant. The case also involves consideration of executive and reserved functions in the context of a local authority.

2020 – 2021: Ted acted for the State Respondents (with Peter Ward SC) before the Supreme Court in Kelly v. Minister for Agriculture [2021] 2 IR 624; [2021] IESC 23; [2021] IESC 62. The case raised important Constitutional issues relating to cabinet decision-making and alleged bias.

The Appellant’s application for leave to appeal raised important Constitutional issues. Leave was granted, as the Supreme Court considered that the appeal raised issues of law of general public importance. Specifically, the issues related to the conduct of meetings of the Government, collective cabinet responsibility and whether a Government decision could be vitiated by the alleged bias of a Minister.

The proceedings concerned a challenge by the Appellant to a decision of the government confirming his dismissal from his post as harbourmaster at Killybegs Fishery Harbour Centre (“KFHC”) in County Donegal. The dismissal followed an investigation and appeal hearing, before an Appeal Board, pursuant to the then-applicable Civil Service Disciplinary Code 1/92. Prior to the appeal before the Supreme Court, Ted acted for the State Respondents before the Civil Service Appeal Board; the High Court and the Court of Appeal.

See: https://www.irishtimes.com/news/crime-and-law/courts/supreme-court/supreme-court-rules-former-harbour-master-not-entitled-to-salary-payments-1.4674952

Media Law

In 2021, he acted for the former Northern Ireland Director of Public Prosecutions, Barra McGrory KC, SC, in his dispute with RTE. See: https://www.irishnews.com/news/northernirelandnews/2021/05/21/news/rte-apologises-to-former-dpp-barra-mcgrory-for-untrue-statements-on-radio-show-2331064/

Regulation / Financial Regulation / Criminal Law / Public Inquiries

Ted acted in four of the six Anglo Irish Bank Corporation-related criminal cases; the action by members of the Quinn family against the Central Bank of Ireland and Others; and in connection with the Joint Oireachtas Committee of Inquiry into the Banking Crisis. No other Junior Counsel acted in more of the criminal and civil actions relating to Anglo Irish Bank than he did.

2015 – 2019 – Represented former IL&P chief executive Denis Casey (with Michael O’Higgins SC). In Mr. Casey’s 2019 Supreme Court appeal in DPP v Casey [2019] 1 ILRM 411, [2019] 3 IR 482, [2019] IESC 7, the Court recognised, for the first time, officially induced error as an objection to the continuation of a criminal prosecution. It is analogous to the defence of entrapment by estoppel in regulatory prosecutions.

Entrapment by estoppel and officially induced error may arise where a party relies on advice from (usually) a state authority that it is lawful to carry out an act, only to be prosecuted subsequently.

Mr. Casey was convicted in June 2016, following an 89-day trial, of conspiring with others in a fraudulent scheme to present Anglo Irish Bank’s corporate deposit base in 2008 as being €7.2 billion larger than it was in reality. In 2018, the Supreme Court granted Mr. Casey leave to appeal against the decision of the Court of Appeal to uphold his conviction. His was the only case relating to Anglo Irish Bank to be appealed to the Supreme Court.

2012 – 2015 – Represented former Anglo Irish Bank Corporation (“Anglo”) group finance director William McAteer (with Patrick Gageby SC) in DPP v McAteer, FitzPatrick and Whelan (DUDP 1019/2012).

This was the first and only occasion to date on which criminal prosecutions have been brought pursuant to section 60 of the Companies Act 1963 (as amended), or under the equivalent section of the Companies Act 2014. Hence the case was a highly consequential one and novel in nature.

Seán FitzPatrick, the former chairman of Anglo, Mr. McAteer and Mr. Whelan were charged with wrongly providing loans to ten investors to buy shares in the bank, in breach of section 60.

The three defendants were also charged in relation to loans to six members of the Quinn family (via six Cyprus-based companies) to underpin their stake in Anglo. The position was held initially through financial derivatives called contracts for difference (“CFDs”). Subsequently, the position was, in part, converted into actual shares in Anglo in 2008. Ultimately, Anglo provided the Quinn family with more than €2 billion in loans between 2007 and 2008 to support the CFD position.

Mr. McAteer and Patrick Whelan, the bank’s former director of lending in Ireland, were each sentenced to 240 hours of community service. Following a forty-seven (47) day trial, extending over eleven weeks, at which evidence was given by fifty-four (54) witnesses, Mr. McAteer and Mr. Whelan were found guilty of providing €450 million in illegal loans to ten developers – the so-called “Maple Ten” – to buy shares in the bank.

The institution was seeking to unwind a leveraged 28 per cent shareholding position in Anglo that had been taken by the family of Mr. Quinn between 2007 and 2008.

Mr. FitzPatrick was acquitted on all counts by the jury. The court of trial heard there was no evidence that Mr. FitzPatrick was aware of the loans. Mr. McAteer and Mr. Whelan were found guilty, but only of the charges they faced regarding the provision of the loans to the ten developers.

The trial judge, His Honour Judge Martin Nolan, chose to impose non-custodial sentences. In sentencing, the judge said that the financial regulator had given the “green light” to the share scheme. In effect, a “State agency led them into error and illegality”.

Among numerous important rulings by the Court of trial was one that taking legal advice was irrelevant to the defence against the charges. The ruling had major implications, not just specific to the case itself, but for directors who seek and obtain legal advice on Company Law and other often complex legal issues.

Neither Mr. McAteer nor Mr. Whelan appealed. The DPP did not appeal against sentence.

2015 – 2016 – Represented former Anglo Irish Bank Corporation assistant manager Aoife Maguire (with Patrick Gageby SC) in her successful appeal following conviction in DPP v Daly, O’Mahoney and Maguire (211/15, [2015] IECA 350; DUDP 194/2014).

The defendants had been found guilty – following a trial lasting two months – of conspiring to defraud the Revenue Commissioners in 2003 and 2004 by deleting or concealing accounts connected to Mr. Seán FitzPatrick, then-chief executive officer and later chairman of Anglo.

Ms. Maguire was charged with conspiracy to commit an offence, contrary to section 243(1) of the Companies Act 1990, contrary to Common Law. She was also charged with conspiracy to defraud, contrary to Common Law.

The particulars of the offence alleged that Ms. Maguire conspired with Mr. O’Mahoney and Mr. Daly to destroy, mutilate or falsify books and documents effecting or relating to the property of Anglo, including specified accounts.

The case called for extensive advices prior to and during the trial, relating, in particular, to tax law and company law. The case also raised important issues concerning the admissibility of evidence under the Criminal Evidence Act 1992 and the Bankers’ Books Evidence Acts 1879 – 1989.

Ms. Maguire appealed against sentence, following her conviction and sentence. Ms. Maguire was released from custody in December 2015 after the Court of Appeal, (Birmingham J.; Sheehan and Mahon J.J., concurring), ruled that her sentence had been too severe.

The convictions of Mr. O’Mahoney and Mr. Daly were quashed in March 2016. In November 2017, O’Mahoney was acquitted on all counts in a retrial. His Honour Judge Martin Nolan ruled there was not enough evidence to connect Mr. O’Mahoney to the offences in respect of which he was charged and that the case should not go to the jury.

2015 – 2017 – Represented William McAteer (with Patrick Gageby SC) in DPP v McAteer and Whelan (DUDP 942/2014).

Mr. McAteer was sentenced in January 2017 to two-and-a-half years in prison, having pleaded guilty to receiving an illegal €8.4 million loan from Anglo in September 2008. The funds were advanced to him as part of a scheme to prevent the collapse of the bank.

Mr. McAteer was charged with fraudulent trading, contrary to section 297 of the Companies Act 1963, as substituted by section 137 of the Companies Act 1990.

The particulars of the offence alleged that Mr. McAteer and Mr. Whelan were knowingly parties to the granting by Anglo of a loan to Mr. McAteer of €8.4 million, secured only on his shares in Anglo, so that he could discharge a loan to Bank of Ireland in the same amount, for which he was personally liable. It was alleged that the loan was made for a fraudulent purpose, namely that of ensuring that Mr. McAteer was not personally liable for the sum of €8.4 million, thereby causing a gain for him and, in the circumstances then prevailing, a loss to Anglo.

The loan averted a potential forced sale of Mr. McAteer’s shares, which would have damaged market confidence in the bank.

In the Circuit Criminal Court, His Honour Judge Nolan ruled that the survival of Anglo was the principal factor behind the offence. The judge also ruled that the sentence would run concurrently with the prison term being served by Mr. McAteer in relation to his earlier conviction for conspiring with others in a fraudulent scheme to present Anglo’s corporate deposit base in 2008 as being €7.2 billion larger than it was in reality.

Joint Oireachtas Committee of Inquiry into the Banking Crisis

The inquiry was established pursuant to the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013.

Ted advised in relation to the inquiry between 2015 and 2016. Issues addressed and in respect of which advices were given included:

1. Composition, skills and experience of the board and board subcommittees of financial institutions;
2. Quality of the business model setting process;
3. Adequacy of board oversight over internal controls to ensure risk is properly identified, managed and monitored;
4. Appropriateness of property related lending strategies and risk appetite;
5. Appropriateness of credit policies, delegated authorities and exception management;
6. Analysis of risk concentrations in the base, the adverse economic scenarios and the impact on capital structure;
7. Adequacy of the incentive and remuneration arrangements to promote sound risk governance;
8. Impact of shareholder or lending relationships in promoting independent challenge by the board and/or executives;
9. Appropriateness of the regulatory regime;
10. Effectiveness and appropriateness of the supervision policy and powers;
11. Nature and appropriateness of the relationship between the Central Bank (including the Financial Regulator), Department of Finance and the banking institutions;
12. The liquidity versus solvency debate;
13. Appropriateness of the bank guarantee decision;
14. Decision to recapitalise Anglo Irish Bank Corporation, AIB, Bank of Ireland, EBS, PTSB and the alternatives available and/or considered.

Chancery

Acted for the Plaintiffs in Reaney v. Interlink Ireland Limited [2022] 1 IR 213, [2018] IESC 13, where, in 2018, the Supreme Court gave an important judgment on lodgements into Court, thereby creating new law in the area.

Non-Jury

Acted in 2018 for K Club resort superintendent Gerry Byrne in Peter Curran v. Gerry Byrne, Michael Smurfit and the K Club [2018] IEHC 722. The Plaintiff’s claim against all Defendants was dismissed. The case featured the highly-effective use of a Norwich Pharmacal order granted in the client’s favour. See: https://www.irishtimes.com/business/retail-and-services/former-k-club-manager-faces-six-figure-costs-after-losing-action-1.3739541

Media Law

Important media law cases also include acting for Nikki Pelley in her successful privacy action versus The Sun. See: https://www.independent.ie/irish-news/courts/oreillys-lover-gets-75000-after-private-letters-printed-26853983.html

And acting for members of the Birmingham Six in their dispute with The Irish Times.

Buying & Selling Insolvent Companies & Businesses in Ireland (published by Bloomsbury Professional, 2013, ISBN 978-1-84766-994-0)

Authors: Ted Harding, Bill Holohan and Gerard O’Mahoney

This is a specialist text which explores all elements of the purchase and sale of an insolvent company or business, including the practical, legal and financial considerations. It was written as a practitioners’ handbook and guide. The book gives clear and practical insights into the issues that can arise when a target business is insolvent and how to address them.

The book highlights the more unusual matters a practitioner may encounter during a transaction. Chapters include those on the hive-down of a section of a business; Data Protection Act issues; raising funds; due diligence; creditors’ claims; sales in corporate insolvencies; secured and preferential creditors; disclaiming onerous property; and asset transfer issues. The carry-over of a business name and stakeholder roles are also addressed. It was the first text to deal with the impact of the Personal Insolvency Act, 2012.

Speeches, Lectures and Presentations include:

The Fifth Court – Ireland’s Legal Podcast.

Ted discusses Media Law, including privacy, defamation, tribunals of inquiry and his experience of acting in the high-profile criminal trials relating to the collapse of Anglo Irish Bank Corporation.

“Regulation and Company Law.” Presentation to Flynn O’Driscoll LLP, Business Lawyers. (21st of November 2021)

Issues addressed included:

• Reliance on Legal Advice / Advice of Officials
• Who may be deemed to discharge a management function?
• What are the legal implications for them?
• The Central Bank (Individual Accountability Framework) Bill
• Insurance issues – Directors and Officers insurance (D&O)

“Financial Regulation and Corporate Enforcement – crucial issues for directors and managers.” Presentation to Fieldfisher Ireland. (23rd of September 2021)

Issues addressed included:

• Duties of Directors and other officers
• Discharging a management function: the legal implications
• Defences to regulatory prosecutions and sanctions
• The Central Bank (Individual Accountability Framework) Bill

“Covid-19 and Business Interruption Claims”. (30^th of January 2021)

Presentation to lawyers and insurance industry representatives, convened by Holohan Lane LLP Solicitors, Cork and Dublin.

The presentation addressed all recent developments in the Irish Courts, along with those of England and Wales, relating to claims by insured parties against insurance companies in respect of business interruption claims arising from the Covid-19 pandemic.

“Lodgements, tenders and offers in writing – critical issues for legal practitioners“. (30^th of December 2020)

Presentation based on the above-mentioned paper convened by O’Mara Geraghty McCourt Solicitors, 51 Northumberland Road, Ballsbridge, Dublin 4.

The paper and presentation focused, in particular, on the decision in Reaney v. Interlink, in which Ted appeared, culminating in the Supreme Court giving an important decision – of wide application – in respect of lodgements into Court.

“Media Law – important recent decisions and developments”. (13^th of September 2019)

CPD presentation to Flynn O’Driscoll, Business Lawyers, Dublin 2.

The presentation to Flynn O’Driscoll, media law advisers to the Independent News & Media Group, addressed all key recent caselaw and provided specific details and analysis of meanings applications under the Defamation Act, 2009.

Aside from his practice at the Bar, Ted carries out advisory work for a range of groups. This includes acting as adviser to bodies in the not-for-profit and charitable sectors.

Ted has been an External Examiner in Media and Communications Law for degree-level courses at the School of Law, Griffith College Dublin.

He has also been a tutor, lecturer and presenter on the Law Society of Ireland’s Bankruptcy Diploma.

In building his practice at the Bar, Ted has drawn on his previous career as the Editor of a national newspaper, (The Sunday Business Post), as an award-winning journalist for his coverage of financial and legal affairs, and as a current affairs broadcaster and presenter on television and radio (RTÉ, BBC, Virgin Media and Today FM).

He is the only former Editor of a national newspaper in practice who is a member of the Inner Bar. He has an in-depth knowledge of business, corporate and financial affairs. Further, his experience of media law is as editor / journalist / publisher and legal adviser. This is a very rare combination at the Bar, giving clients an exceptional and, perhaps, unique perspective.

Involvement with relevant associations/committees or organisations

Member of the Media, Internet and Data Protection Bar Association (MIDBA) – 2023 – to date.

Member of the Financial Services Bar Association (FSBA) – 2022 – to date.

Member of the Chartered Institute of Arbitrators – 2006 – to date. Ted been active in the Institute’s Mediation services and is an Accredited Mediator, having completed the Institute’s Mediation training course.

Member of Arbitration Ireland – 2011 – to date.

Member of Restructuring and Insolvency Ireland (previously the Irish Society of Insolvency Practitioners) – 2011 – to date.

Member of the Commercial Litigation Association of Ireland – 2010 – to date.

Member of the Professional, Regulatory and Disciplinary Bar Association (PRDBA) – 2016 – to date.

Member of the Construction Bar Association – 2013 – to date.